After everything the world has been through recently, we are learning new things all the time. Some of us are experiencing more time with our family, some know what it is like when a community pulls together and all of us know a little more about sacrifices for the greater good.
The effect on the economy is vast, and commentators are taking bets (sometimes literally) on what will happen next. They are advising on all sorts of areas, and the legal sector will need guidance too.
We have seen the simplest of legal things become more entrenched than before, most notably signing of some documents. The signatures on Wills and witnessed documents still need personal attendance; something which has meant putting people at risk. Where they are signing wills, they are statistically likely to be in the higher risk categories.
Companies and individuals are changing contract terms on a handshake, some are breaching contract terms without managing the real underlying agreement.
Employers removed businesses from offices on relatively short notice and moved their workforce, small or large, to home working. I am yet to hear about companies undertaking wide-scale health and safety checks, or negotiate wage reductions – many forcing it on staff under threat of losing their jobs.
None of this is ideal and the worry is not whether it was all done with the best intentions in mind, but whether the law will be flexible enough to manage intention, needs, government advice etc etc.
So many people have changed contract terms on a handshake, a quick run of emails or over the phone. Problems are already starting to spring up, and we are not even coming out of lockdown.
With changes made quickly (without advice very often) and to reach a goal rather than thought being put into the route of how to get there, there are going to be holes in the train of thought.
There is also going to be a difference of intention: One party may have wanted the price to go down, but the other was more intent on accepting that price reduction for a short period (which they probably did not define). One party may have wanted to change the way they work to suit the new guidance, when the other may feel they want that change to last.
What if one person wanted things to be put on hold, but the other took it as termination of the contract? If notice of termination was not properly served, who will win out?
Moving most of the work force has meant simple considerations (which may have been minor or already sorted in house) may already have been ignored.
What about those with back problems, now required to work from their dining table without a proper posture check?
There will be those now at home, on their own who were prone to anxiety, stress, extreme loneliness, and depression, who may have been ignored by other members of staff.
What about people who were ‘asked’ (read, ‘forced’) to accept pay reductions. Some will have been asked to continue working the same hours, perhaps even harder and under more difficult circumstances, for less money.
Those who have been made redundant have had their work passed over to colleagues, who are now working more hours.
What if employers haven’t thought about the work/home-life effect being at home all the time will have had. Many of us work at home with children and other family members, increasing work and stress.
So many other areas…
We are going to see a huge increase in issues to consider in a number of areas.
- Medical negligence claims
- Tort claims
- Divorce & domestic violence
- Company – directors’ duties (for decisions taken)
- …and many more
Will the law help?
The basis and structure of our legal system has flexibility built in. Cases with similar/different/the same facts can all have different outcomes based on niche arguments.
I have some confidence the law will support those who changed the way they work during the lockdown, but there are two sides to every story.
For every issue changed because of lockdown, one side will have come out slight or dramatically better than the other. That means people will have more arguments and negotiations to come.
Common sense should prevail but, where litigation occurs, that is not always the case.
The Court and government should take a pragmatic view on this. I do not think lawyers should jump on the litigation band wagon, but none of us can be trusted! By which I mean anyone, not just lawyers: Human nature will no doubt kick back in when we move back to the ‘new normal’.
We moved into lockdown being as pragmatic and sensible as we can be. Just as everyone organised and reorganised their workforce, contracts and business/personal relationships to fit the lockdown, we need to move back out of lockdown without much force, and the Courts need to help us do it.
There is going to be a lot of litigation in moving out of lockdown. We will not avoid it.
I would not rely on a legal system that refused to move to fit a new way of working quickly. We are going to find it stuck with pre-lockdown mentality to be applied to a post-lockdown approach to work. In many cases, it will have the opportunity to help. I think it will approach each issue in the same way it has before: Claim Forms and Defences, money and time.
What can we do?
Review your documentation and decisions in the past few months.
What have you done, why, how and with whom? Do you have records of that? How many people has that decision affected? Can you put them back in the position they were in before lockdown? Record it all in writing. Speak to advisors; get their advice on what to do.
How will you treat employees?
Make sure you know what your business really needs now, and get a good understanding of where it will go in the future. Can you work online forever? Do you still have premises – are they needed? If some of them have issues during lockdown, find out now and do something about it. Will you return their contracts back to what they were before lockdown? If not why not? What was agreed at the time of changing?
You can buy legal insurance for many things, from employment to business interruption (for what the latter is worth at the moment!).
Think about what you need to insure, can you get it now? Ask a broker. Make sure it covers what you need it to.
We work with employment related insurance regularly and can help with that, otherwise can introduce you to a broker.
The first thing a lawyer is going to ask you when an issue starts is for evidence – ‘Send me your correspondence and documentation’ is something I say every day.
Make sure HR, your legal team, your business team, all keep copies of documents and records of conversations.
If you can work out a way back out of lockdown with those people now, do that and record that.
We don’t know what things will look like exactly, after lockdown. What we do know is there are going to be more challenges and more thinking to be done. Planning and pragmatism is going to be vital. Make sure you start early!